This is the first in a two-part series about copyright registration. Part two will follow in the April issue of AVN Online.
If you create content, copyright registration is immensely important. And remember: Creating content includes taking other content that you have the right to use and putting it together in an artistic way, such as making a collage or a magazine or, particularly pertinent here, putting together a website. For example, take AVN Online. It is a collection of pictures and articles, some of which are contributed by in-house photographers and writers. Other content—such as this article—is contributed by freelancers (in the case of this article, a full-time lawyer who would rather be a writer). The collection is subject to AVN's copyrights, even though AVN may only have a license to use some material that has been copyrighted by others.
Copyright fundamentals begin with Article I of the U.S. Constitution, which allows Congress to "promote the Progress of…useful Arts, by securing for limited Times to Authors…the exclusive Right to their…Writings," a function that was reserved entirely to the federal government by the Copyright Act of 1976—no state laws are involved. A tour of what Congress has done, at least as relevant here, follows.
The author of a "work" (which, in copyright jargon, is called a song, movie, computer program, or whatever) obtains a copyright the first time it is "fixed in a tangible medium." The author can be the employer if the work is created by an employee hired for the purpose of creating it. (Be careful: The "work for hire" doctrine is really complicated.)
It is prudent to associate a copyright "notice" with a work: the symbol © followed by the year of creation and the owner. For example: © 2007, Clyde DeWitt. Although worthwhile, the copyright notice does not get you much, legally. You already owned the copyright when you fixed the work into a tangible medium, but you cannot effectively enforce it until it is registered. So, you see, copyrights are easy to obtain, but they don't do you much good unless you register them. Why?
Reason No. 1: You cannot bring an infringement action without having first registered the copyright. In more technical terms, that means satisfying the registration and deposit requirements of the Copyright Office of the Library of Congress, which is easy. You send in the appropriate form, a copy of the work, and the fee, (presently $45). The Copyright Office sends the stamped form back to you, and that's that.
Reason No. 2—and it's a biggie: Normally, any time someone infringes on your business rights of any kind, including copyrights, you are entitled to recover either your losses (which in practice is nearly impossible to prove) or the defendant's ill-gotten gains. However, suppose some guy sold 31 counterfeit DVD titles for $10 each at a swap meet. His ill-gotten gains may be 31 times the price charged, or $310. Big deal!
However, timing is everything. Registering your copyright before the infringement commences means you can recover attorneys' fees along with statutory damages, which start at $750 per infringed work, go up to $30,000 each, and can reach as high as $150,000 for willful infringement. That same DVD pirate now potentially would be liable for a minimum of $23,250—or 31 times $750. The infringer can get below the $750 mark only by proving the infringement was "innocent"—like if the infringer had purchased a license from someone credibly impersonating the author. Plus, a copyright notice helps deflect an innocent-infringer defense and helps prevent lazy counterfeiters (e.g., the ones who don't even take the trouble to crop off the copyright notices) and "deep linkers" from ripping you off.
Now, you may have figured out a loophole: What happens if the infringer releases his infringing copies before you publish your genuine article (maybe an inside job)? You failed to register "before the infringement commenced." Well, Congress has already taken care of that. As long as you accomplish registration and deposit within "three months" of first publication, you have a "safe harbor," and you are protected no matter when the infringing activity commences.
The registration process is rather easy. First, you must figure out which form to use. The copyright office has separate forms for different types of works, just like the license plate department of the Department of Motor Vehicles may have forms for each category of vehicle: cars, trucks, motorcycles, boats, and so on. These forms are designated with codes instead of words.
The relevant categories of copyrightable material, each with an applicable form, include (1) literary material; (2) pictorial and graphic works (e.g., paintings, lithographs, murals, and, of particular interest, photographs of people having sex); (3) audiovisual materials; (4) sound recordings; (5) serials (e.g., newspapers and magazines), and some other material. The registration forms and their instructions can be found on the Internet at the U.S. Copyright Office of the Library of Congress (LOC.gov/copyright).
Second, you must mail (1) a completed Form VA; (2) a $45 check payable to the "Register of Copyrights," and (3) the depository copy of the content, whether a photograph or an article to the Copyright Office.
Now, what about copyrighting your whole website? After all, websites often contain multiple categories: photographs, sound recordings, text, and motion pictures. Worse, good ones change every day; some (CNN.com, for example) change every few minutes or seconds. The particulars of the registration process under those circumstances will be found in the next segment of this series.
Clyde DeWitt is a Los Angeles attorney whose practice has been focused on adult entertainment since 1980. He can be reached through AVN Online's offices or at [email protected]. Readers are considered a valuable source of court decisions, legal gossip, and information from around the country, all of which is received with interest. Books, pro and con, are encouraged to be submitted for review, but they will not be returned. This column does not constitute legal advice, but rather, serves to inform readers of legal news, developments in cases, and editorial comment about legal developments and trends. Readers who believe anything reported in this column may impact them should contact their personal attorneys.
